Is Using A Photo Without Credit A Separate Violation Of The DMCA?

from the wtf? dept

One of the worst parts of the DMCA is the anti-circumvention clause, which makes it a separate violation just to circumvent various "protection" measures -- usually DRM. There is a separate clause related to this, which focuses on altering "copyright management information" which most people have always believed to mean the digital information about the copyright holder associated with the DRM. However, a court case involving some naked DJs is putting that to the test. THREsq explains the details of the case:

In 2006, New Jersey Monthly magazine hired photographer Peter Murphy to shoot WKXW hosts Craig Carton and Ray Rossi for a "Best of New Jersey" issue naming the pair as "best shock jocks" in the state. The two radio hosts were photographed standing, apparently nude, behind a WKXW sign.

Later, after the magazine had come out, the WKXW website took a scanned copy of the photograph and put it on its website, inviting its fans to take the image, manipulate it, and submit the results. The station stripped away NJM's caption and Murphy's photo credit and never got permission to use the copyrighted photograph.

There are a variety of legal issues raised in the case (including a defamation claim for how the DJs reacted after Murphy complained), but the interesting one is that Murphy claimed that simply removing the credit line on the photo is an entirely separate DMCA violation, whether or not the use of the photo infringes itself, because it messed with the "copyright management information." The radio station and the DJs reasonably argue that this is preposterous, and the lower court agreed, granting summary judgment. However, the appeals court feels differently, and thinks it's an issue worth exploring, and sends it back to the district court to explore.

The court goes through what feels like a tortured reading of the DMCA to come to this conclusion, and determines that while this result may not be "desirable, it is not absurd." Really? It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.

Reader Comments

It does make sense

even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.

Oh, but it does make sense. But not in a way that is good. In the larger picture of what seems to be going on, it makes perfect sense.

Intellectual Property is just getting warmed up. Things are going to get so you can't trim your toenails without infringing someone's intellectual property, in several different distinct ways, including circumventing a protection measure.

Re: It does make sense

The fact that an unauthorized user(henceforth known as "Pedicure Pirate") is able to obtain this device and use it for the purpose of circumventing the iPed nail trimming authorization functionality is a clear violation of the DMCA, and all unauthorized manufacturers of devices that perform such acts must Cease and Desist all manufacture, sales, and promotion thereof.

Apple loses millions of dollars a year to unauthorized nail trimming in the private sector by Pedicure Pirates, and will take aggressive measures in order to curb such action in order to protect their Intellectual Property.

Two things

1. You're absolutely right that this is absurd in cases of fair use, but then the DMCA anti-circumvention clause applies in cases of fair use as well, so why does this surprise you? This needs to be addressed by changing the legislation to have the entire DMCA made invalid in cases of fair use, not just this one part of it.

2. So if we set aside the absurdity of this applying in fair use cases, I am leaning in the direction of agreeing with the court here. Why? Let me ask a series of questions to answer that: Since digital photos have no form of DRM, would removing the copyright notice from the EXIF data count as a reasonable violation of this clause? If so, then what do you do for analog (printed) photos that won't have any EXIF data? The copyright notice serves that same purpose in my opinion, and removing it could indeed be seen as a violation of this clause.

To be clear, I'm not saying I think this is right, just that this is a logically consistent reading of the law as it stands today. Only Congress can change it at this point.

I don't think this is absurd within the context. The entirety of copyright as it is today is an absurdity designed so as to give more control and more ownership to some sort of a Platonic ideal of a creator. This decision would give copyright holders even more control. Imagine a fair use collage. The collage didn't include the copyright information so now we have a DMCA violation even though the collage is otherwise legal. This is a barrier to fair use and requires you get permission from the copyright holder in more cases. This is just copyright being consistent with its own inherent absurdity. Nothing absurd about that.

Re:

The court goes through what feels like a tortured reading of the DMCA to come to this conclusion, and determines that while this result may not be "desirable, it is not absurd." Really?

I just read through the court's analysis of the DMCA claim, and I'm curious why you think it's a "tortured reading." When you make claims like this without explanation, one can't help but think you are simply working backwards.

It seems pretty absurd that you can violate a separate part of copyright law just by removing a credit. If this actually is ruled reasonable in court, it could mean that even in cases of fair use, if you remove the credit, you could still end up violating the DMCA. That doesn't make much sense.

The court addresses this in footnote 8:"The Station Defendants point out that most fair uses will involve the removal of CMI. However, unlike § 1201, § 1202 applies only when a defendant knows or has reasonable grounds to know that the removal will “induce, enable, facilitate, or conceal” an infringement. Thus, those intending to make fair use of a copyrighted work are unlikely to be liable under § 1202."

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Re: Re:

That doesn't answer the question. If 1202 only applies when the defendant knows or should know that the removal will "induce, enable, facilitate, or conceal" an infringement, then how does that affect fair use?

Moreover, how is the circuit court's reading of the plain text of the statute "tortured"?

a variety of legal issues

It seems like there are four or five contracts involved here, implied or otherwise. Each party has some quantity of rights. If you take a photo of me, with my permission to do so, unless you as the photographer had an explicit contract preventing me doing so, I'd claim fair use - I am the subject - it is my image - I think I have a right to use a copy of that photo anyway I like. Throw in the mix that the photographer was working for hire for another party (the magazine)and the personalities were working for hire (the broadcasting company) - seems to me that there would need to be some excplicit contracts signed to clarify the rights to the photo-shoot. Since the personalities weren't working as models for hire directly to the photographer - the photographer does not have exclusive rights to the personalities’ images. It seems like those copy-rights are co-owned unless somehow each party waved some portion of their rights, contractually. This one is too complicated for the average person, I think.

Re: a variety of legal issues

I have a better idea - instead of wasting time, money, and eroding society as a whole, we step back and realize that it's just a damn photo. Put it into public domain and stop trying to make money from outdated laws written by big media and passed by technologically clueless politicians.

So if taking away the copyright attribution off a photo is a DMCA violation, then how about taking the license off open source software and using it? Seems like a fair analogy to me. Many major companies have been found in violation of open source licensing which is fine, but how about slap them with a DMCA violation as well so that big legal can start to fight big legal.

DMCA vs Fair Use

The goal of the DMCA has always been to make fair use disappear. That's why they put it in. Sure, you can make copies of your purchased media for you own uses, but the creation and distribution of any tools that enable you to exercise fair use are illegal. It's like being locked inside a building. They say you can go outside any time you like, but the only way out is through a locked door. If you break through that locked door you will be punished. That's the DMCA. It's a tool to take rights away from the public and give more to the publishers.

It bothers me even more how copyright works with photographers. You pay the photographer to take photos for you, yet the rights to those photos go to him. Why does the photographer and not the person paying for the photo? I'm sure any photographer that takes photos for a corporation has to sign over his rights to the photos in order to get paid, but normal folks who just want to be able to use their photos for their own purposes (Such as reprints of family photos from 60-70 years ago for preservation purposes) can't because the photographer owns them for some stupid reason. Why does the photographer need those right assigned to him? Why does he deserve them? Didn't he get paid to take and print those photos? Isn't that enough? Oh, I forget! Copyright is supposed to give all creators of art perpetual income regardless of the fact that labor was performed and paid for long ago.

I despise this arrangement and I think that if anybody should have the rights to their professional created family photos, it should be the ones who paid to have them made! The radio station shouldn't be getting grief for this from the photographer if the he was paid to take that photo. If anybody should be suing WXKW, it should be the magazine. They paid for the photo shoot! Those photos should belong to them. Apparently, the magazine didn't want to pay out to buy the rights to the photos, probably because the cost was too high. So copyright gives you the power to demand more money if they want to be able to do more with the photos. How sad.

'not desireable, but not absurd'

It is not desirable because it is a clear example of the Law of (i hope) Unintended Consequences.

It is "not absurd" because, since the law does not specify precisely what constitutes "circumvention", anything which would tend to obfuscate the ownership of the copyright must be considered "circumvention" under the law.

Good laws are written so as to precisely define what they are to cover. Poor laws are not.

(And that may derive from simple neglect/stupidity on the drafters' part or actual malicious intent to sneak a law that benefits special interests through.

(The determination as to which applies in this case is left as an exercise for the reader.)